Nye v. Lovitt

• Decision Date: 26 March 1896
• Citation: 24 S.E. 345,92 Va. 710
• Parties: NYE. v. LOVITT et al.
• Court: Virginia Supreme Court

24 S.E. 345

92 Va. 710

NYE.

v.LOVITT et al.

Supreme Court of Appeals of Virginia.

March 26, 1896.

Deeds—Construction — Heirs — Conveyance by Trustee—Estoppel of Beneficiary —Ejectment.

1. A deed recited that "the said L. being my relative, and desiring specially to provide for her and her children, " it was the grantor's intention to give to the said L., "and the heirs of her body, " property afterwards described. The granting clause in the deed is "to L. for and during her natural life, and, at her death, then to the heirs of her body, and their heirs, forever." The property was conveyed subject to the grantor's life estate at his death to pass to L., "to be held and enjoyed by her during her natural life, " and after her death to become "the property and estate of the heirs of her body, and their heirs, forever." Held, that the grant was to the heirs of the body of L., and not to her children.

2. In construing a deed, one by the same grantor, of different land to a different person, cannot be considered.

3. A grantee of an estate per autre vie, who was also the remainder-man, conveyed "all his right, title, and interest" in the land to a trustee, for the separate use and benefit of his wife, with authority to sell the property whenever so directed by the beneficiary. After the death of her husband the beneficiary directed the trustee to sell the land, and he conveyed it in accordance with the authority vested in him as trustee. The beneficiary united in the deed as theparty "of the third part, " but made no averment that she was seised of any estate in the land which the deed purported to convey. The remainder after the death of the life tenant, descended to the beneficiary's two children; and, by the death of one of them before marriage, the mother became one of the heirs to the land. Held, that she was not estopped by the trustee's deed from relying on her after-acquired title, in an action of ejectment.

4. A joint owner of lands, who has title to an undivided interest therein, cannot, in ejectment, recover the whole land, but only such interest in the premises as he may prove himself entitled to.

Error to corporation court of Norfolk.

Ejectment by Hattie C. Lovitt and Mary C. Lovitt against David B. Nye. Prom a judgment in favor of plaintiffs, defendant brings error. Reversed.

Harmanson & Heath and Staples & Munford, for plaintiff in error.

Tunstall & Thorn, for defendants in error.

BUCHANAN, J. The first question to be determined in this case is the proper construction of the deed upon which the defendants in error base their right to recover the land in controversy, and of which the following is a copy:

"Whereas, I, George Bramble, of the county of Norfolk, in the state of Virginia, having resided in the family of Wilson H. C. and Jane C. Lovitt for some years, and the said Jane C. Lovitt being my relative, and desiring specially to provide for her and her children, it is my intention herein to give to the said Jane C. Lovitt, wife of the said Wilson H. C. Lovitt, and to the heirs of her body, a tract of land hereinafter to be described, the same to take effect immediately upon my death. That is to say, the property and estate in and to the said tract of land are reserved, and are to continue to reside and be in me, by me to own, use, and control, for and during my natural life; and at my death, and instantly thereupon, the said tract of land, and the title thereto, are to pass to, and become the property of, the said Jane C. Lovitt, to be held and enjoyed by her during her natural life, and after her death, the same are to pass to, and become the property and estate of, the heirs of her body, and of their heirs, forever. And the said tract of land lies in Norfolk county, on the Eastern Branch of the Elizabeth river; contains, by rough estimation, —— acres; and is embraced within the following metes and bounds: * * *

"Now, for and —— consideration of the natural love and affection which I have for the said Jane C. Lovitt, and for her said heirs, and for the further consideration of one dollar to me in hand paid by the said Jane C. Lovitt, the receipt of which is hereby admitted, I, the said George Bramble, do hereby make my deed, and thereby give, grant, and convey unto the said Jane C. Lovitt, for and during her natural life, and, at her death, then to the heirs of her body, and to their heirs forever, — subject, however, to my life estate therein heretofore carved out and reserved, —all the right, title, interest, and estate which I have, may or shall have, in and to the tract of land above mentioned and described, with all the rights, ways, privileges, and appurtenances thereto pertaining or belonging. And I give, grant, and convey the said tract of land to the said parties, subject to my life estate therein, to be held, enjoyed, possessed, and owned by them as aforesaid, with general warranty. And to all of the above, and every part thereof,

"I have hereunto set my hand and affixed my seal the 7th day of January, 1865.

"Geo. Bramble. [Seal.]"

At the time the conveyance was made, Mrs. Lovitt had three children, —two sons aged, respectively, 27 and 25 years, and a daughter aged 21 years. One of the sons was then married, and had one child, born in December, 1861. Before the mother died, one of her sons, Robert Lovitt, died, leaving two children. So that she had two children living at the time of her death, and two grandchildren, as the heirs of her body.

During the lifetime of the mother the two sons purchased her life estate, and partitioned the land between them. Robert sold his interest, and it passed by mesne conveyances to the defendant in error. To recover the land so conveyed, the children of Robert Lovitt instituted their action of ejectment against the defendant in error.

Their right to recover depends upon the question whether, by the conveyance of George Bramble, the remainder in the land passed to the children of Mrs. Lovitt, or to the heirs of her body.

The granting clause in the deed is "to Jane C. Lovitt for and during her natural life, and, at her death, then to the heirs of her body, and their heirs, forever."

Unless there be in the deed other expressions or provisions which clearly show that the grantor used the words "heirs of her body" in some other than their ordinary acceptation, and as descriptive of another class of objects, it is clear that the fee in the land, subject to Mrs. Lovitt's life estate, passed to the heirs of her body, and not to her children; for no rule is better settled than that technical words are presumed to be used technically, unless the contrary appears on the face of the instrument, and that words of definite legal signification are to be understood as used in their definite legal sense. Findley v. Find-ley's Ex'rs, 11 Grat. 434; Wallace v. Minor. 86 Va. 550, 10 S. E. 423; 2 Minor, Inst. (4th Ed.) 1066; 2 Jarm. Wills (5th Am. Ed.) p. 382.

It is insisted, however, that there are expressions in the deed which show that the words "heirs of her body" were not used in their ordinary sense or acceptation, but that the grantor, in using them, meant the children of Mrs. Lovitt. The word "children" does appear in the preliminary part of the deed, where the grantor, in giving his reasons for making the conveyance, declared that hehad resided for many years with Mrs. Lovitt and her husband, that he was related to her, and that he desired "specially to provide for her and her children."

This court, in a line of decisions beginning with Wallace v. Dold, 3 Leigh, 258, and coming down to the case of Stace v. Bumgardner, 89 Va. 418, 16 S. E. 252, has held that a grant or gift to a woman and her children, or to a trustee for the benefit of herself and children, passed to the mother, and that the mention of the word "children" in the deed or will merely indicated the motive for the conveyance or gift, without investing them with any interest therein. The use of the word "children" in that part of the deed under consideration does not, under our decisions, indicate an intention on the part of the grantor to convey any part of the property to them as such, in præsenti or in remainder. That he had no such intention is clearly shown, it seems to us, from the language which follows, in which he declares what was his intention.

In the same sentence, and immediately following his declaration that he desired "specially to provide for her and her children, " he adds: "It is my intention herein to give to the said Jane C. Lovitt, wife of the said Wilson H. C. Lovitt, and to the heirs of her body, " the property conveyed, subject to his life estate; ".and at my death, and instantly thereupon, the said tract of land, and the title thereto, are to pass to, and become the property of, the said Jane C. Lovitt, to be held and enjoyed by her during her natural life, and after her death the same are to pass to, and become the property and estate of, the heirs of her body, and of their heirs, forever."

After thus declaring his intention to convey the property to Mrs. Lovitt for her life, and after her death to the heirs of her body, in language too plain to be misunderstood, or to need interpretation, he proceeds to carry out that intention by conveying the property in the following language: "I, the said George Bramble, do hereby make my deed, and thereby give, grant, and convey unto the said Jane G. Lovitt, for and during her natural life, and, at her death, then to the heirs of her body, and their heirs, forever, " the property in the deed described, etc.

It is also insisted that the deed of January 14, 1865, by which the grantor in the deed of January 7, 1865, conveyed certain property to Jane E. Lovitt, daughter of Mrs. Lovitt, can be looked to in construing the deed of January 7, 1865. This we do not think can be done. The deeds are between different parties, and in...